How the Jackson reforms have inhibited police claims.
As the Jackson reforms bed in, some pockets of litigation are emerging in which it has become extremely difficult to bring claims.
One such area is actions against the police – with big implications for constitutional rights and police accountability.
So what is the problem? The Police Action Lawyers’ Group outlined the issues in its submission to the Civil Justice Council’s conference on the Jackson reforms last month.
Essentially, the difficulty stems from the fact that (as in all litigation post-Jackson) the cost of a claimant’s after-the-event insurance premiums - taken out to cover the opponent’s costs bill if the claimant loses the case - can no longer be recouped from the other side if the claimant’s case is successful.
So even if someone wins their action against the police, they will still need to pay their own ATE premium. In normal litigation, the idea is that they can meet the cost of this premium from their damages. But in these police claims, ATE premiums are very high (typical pre-Jackson rates were £30-35,000), while damages are low (a typical claim for, say, false imprisonment might range from £10,000 to £30,000) – so the sums just don’t add up.
Either damages are lower than the premium itself, or the premium will wipe damages out entirely. This creates what the group describes as an ‘insurmountable barrier’ to bringing claims.
Police action lawyers want to see qualified one-way costs shifting (QOCS) introduced because this offers protection from the opponent’s costs, theoretically eliminating the need for ATE – although the lesson we’ve learnt so far from personal injury is that ATE is still being taken out for disbursements, and to cover exposure relating to Part 36 offers, albeit at lower premiums than under the old regime.
In introducing the reforms, it surely cannot have been the government’s deliberate intention to make it impossible to bring claims against the police for false imprisonment, malicious prosecution, death in custody (where the claim falls outside the Fatal Accidents Act) and other claims.
Indeed, in his original 2009 proposals, Lord Justice Jackson identified claims against the police and judicial review as categories which should attract QOCS, on grounds of social policy. It is worth noting that he also suggested defamation and breach of privacy as other areas where QOCS would be appropriate, and this is already in the process of being introduced.
At the CJC conference, the notion of QOCS for police claims - as well as other areas where it is currently very hard to bring claims, such as nuisance claims - appeared to receive a warm reception from some of the speakers.
But as with everything else, ultimately it will depend on whether the political will is there to put this right – or whether it is more convenient for ministers to simply ignore the problem.
Rachel Rothwell is editor of Litigation Funding magazine